Charles v. St. Louis, Memphis & Southeastern Railroad
101 S.W. 680
Mo. Ct. App.
1907
Check Treatment
BLAND, P. J.

(after stating the facts). — 1. At the close of plaintiffs’ evidence and again at the close of all the evidence, defendant offered instructions in the na*300ture of demurrers to the evidence. The first error assigned by defendant is the refusal of the court to grant either of these instructions. Its contention is that all matters tried in the case were involved in a former suit and the judgment in that suit is conclusive as to all subsequent matters which might have been presented and determined therein. Quoting from Henderson v. Henderson, 3 Hare 1. c. 114, the Supreme Court in Donnell v. Wright, 147 Mo 1. c. 646-7, 49 S. W. 874, said: “Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not (except under special circumstances) permit the same parties to-open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. The plea of res adjudieata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time.” That this is the accepted doctrine in this State see Hamilton v. McLean, 169 Mo. 51, 68 S. W. 930; City of Salisbury v. Patterson, 24 Mo. App. 174; Laffoon v. Fretwell, Ib. 258; Dickey v. Heim, 48 Mo. App. 114; Barkhoefer v. Barkhoefer, 93 Mo. App. 373, 67 S. W. 674. In the former suit the recovery was limited by the instructions to the rental value of the land from the date when the cattle-way should have been made to the date of the .commencement of the suit. Were plaintiffs entitled to recover in that suit a lump sum for all the damages that had and would accrue in the future by reason of the failure and refusal of tbe railroad company to con*301struct and maintain a cattle-way, as required by the decree in the condemnation proceedings ? and did the allegations of the petition warrant such a recovery? are vital questions in the determination of the defendant’s plea of res adjiulicata. The petition in the first suit alleged that by reason of the failure of defendant to construct and maintain the undergrade crossing, defendant had “deprived plaintiffs of the use and benefit of said 13.37-acre tract of land aforesaid, to their damage in the sum of three hundred dollars.” The evidence tends to show the land was worth at least one hundred dollars per acre. The petition only counted on the damages which had accrued, not for both present and prospective damages from the continuation of the nuisance. The contract (the decree), for a breach of which by the maintenance of a nuisance described in the petition, could have been performed by defendant and the nuisance removed at any time, by constructing the undergrade crossing, thereby preventing future injury. In these circumstances, plaintiffs were only entitled to compensation for the loss actually sustained prior to the first suit. [Pinney v. Berry, 61 Mo. 1. c. 367. J It is only where the injury to land, occasioned by the commission of a nuisance, is of a permanent character and goes to the entire value of the estate that compensation for the whole injury can be recovered in one suit. When the injury is “susceptible of periodical apportionment,” redress may be had by successive suits. [Van Hoozier v. Railroad, 70 Mo. 145; Ivie v. McMunigal, 66 Mo. App. 1. c. 441.] Sutherland says: “Successive actions may be brought if the nuisance continues by the continuous fault of the defendant. . . If it continues afterwards (after the first suit) the damages resulting therefrom can only be recovered by a new suit, and they may be so recovered, for every continuance of the nuisance is a new nuisance” [4 Sutherland (3 Ed.), see.. 1038.] At section 127, vol. 1, the same author says: The necessity *302and advantage of successive actions to recover damages which proceed from a continuous and still operating cause are very obvious; for, besides the considerations' which have already been mentioned, the injurious effects so blend together that in most instances it would be wholly impracticable to accurately apportion them. Therefore, the right to recover for all damages which have been suffered to the time of bringing the first action, in the next, all damages which have been suffered from that time to that of commencing such second action and so'on while the cause continues, is the most convenient course for practical redress that can be devised.”

In Jones v. Lavender, 55 Ga. 228, it was held: “Where the plaintiff might, "without any new act on the-part of defendant after a former suit was commenced, have sustained damage between the time of instituting that suit and the time of instituting the present suit, and such damage might have resulted from the same positive acts complained of in the former suit by reason of the longer continuance of the state of things which those acts established, a verdict for defendant in the former suit is not conclusive upon the plaintiff in the latter.”

On these authorities, we think it is clear that plaintiffs were not estopped by the first suit from prosecuting the present one.

2. The giving of the following instruction for plaintiffs is alleged to be error, to-wit:

“The court instructs the jury that if you find and believe from the evidence, that the plaintiff, Catherine Charles, was at the time mentioned in the evidence and is now the owner of the tract of land through which you may find, from the evidence, the St. Louis, Memphis & Southeastern Railway runs, and that the plaintiff, Thomas A. Charles, is her husband, and if you further find and believe, from the evidence, that by decree of the circuit court of Jefferson county, Missouri, made and en*303tered the seventeenth day of September, 1903, in a certain cause wherein plaintiffs herein were defendants and the St. Louis, Memphis and Southeastern Railway Company was plaintiff, said railway company became bound by said decree to construct and maintain a crossing underneath said railway fourteen feet in width and eight feet in height for the use of plaintiffs at the place and manner designated in said decree; and if you further find and believe, from the evidence, that the defendant, St. Louis, Memphis & Southeastern Railway Company, has failed to construct and maintain said crossing as aforesaid, then your verdict must be for the plaintiffs. And plaintiffs are entitled to recover such damages as you may find, from the evidence, they may have suffered since December 9, 1904, to December 6, 1905, by reason of defendant’s failure to construct and maintain said crossing, if you so find and believe, but not to exceed in amount the sum of three hundred dollars, the amount sued for in this action.”

The instruction erroneously Submitted to the jury the construction of the provisions of the decree of condemnation under which plaintiffs sought to recover. Where written instruments are offered in evidence, it is the duty of the court to construe them and instruct the jury what they mean and their legal effect. [McClurg v. Whitney, 82 Mo. App. 1. c. 631, and cases cited; Nelson v. Hirsch & Sons, 102 Mo. App. 1. c. 513, 77 S. W. 590; National Bank of Plattsburg v. Fry, 168 Mo. 1. c. 514; Black River Lumber Co. v. Warner, 93 Mo. 1. c. 384, 6 S. W. 210.] But we do not think defendant was prejudiced by the error, as the result shows the jury properly interpreted the decree, that is, they found defendant was obliged by its terms to construct- and maintain a crossing fourteen feet in width and eight feet in height, underneath its railroad at the place designated in the decree, for plaintiffs’ use; in fact, there was no controversy over the terms of the decree, and they are so *304plain that the jury could not have misinterpreted them. No reversible error appearing, the judgment is affirmed.

All concur.